"It Was A Case Of Fence Eating Into The Crop"; Bombay HC Upholds Conviction & Life Sentence Of Father Who Raped Minor Daughter Repeatedly [Read Judgment]

Court also held that the victim is entitled to compensation under the Victim Compensation Scheme framed by the State Government under Section 357-A of the Code and made a recommendation to the State Legal Services Authority to award appropriate compensation to the victim under the scheme.

Division bench of Justice SS Jadhav and Justice NJ Jamdar were hearing a criminal appeal filed by 55-year-old Sayyed Sheikh from Palghar district who is currently lodged at Kolhapur Central Prison. Sheikh was convicted in order dated December 20, 2016 passed by the Additional Sessions Judge, Vasai, and he came to be convicted for the offences punishable under Sections 376 (2) (i) and (n); 323 and 506 of the Indian Penal Code and sentenced to suffer imprisonment for life.

According to the persecution, the accused was residing at Anandnagar slum, Vasai (West) along with his 15 year old daughter (the victim) and 6 year old son. His wife and the mother of the children had left them and solemnized a second marriage. The accused was working as a rag picker.

Since one year prior to November 4, 2014, the accused had sexually exploited the victim. The accused used to disrobe the victim, tie her legs and forcibly commit sexual intercourse. When the victim tried to resist, the accused gagged her mouth. The victim attempted to reason with the accused. But the latter continued to ravish her. The accused threatened the victim out of her life if she narrated the exploitation to anybody. Initially the victim had apprised her ordeal to female members of her community but they did not assist her. Ultimately, the victim mustered courage and informed the sexual exploitation at the hands of one accused to one Sunita Bablu Chavan. The latter approached Geeta Ayre, a Member of Mahila Dakshta Samiti, who took her to Manikpur Police Station.

The victim thus lodged a report at the said police station and crime was registered for the offence punishable under Sections 376, 323 and 504 of IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012.

After the concluding the investigation, a chargesheet came to be lodged against the accused before the Special Court. The Special Judge framed charges against the accused for the offences punishable under Sections 376(2)(i)(n), 323 and 506 of IPC and Sections 4, 6 and 8 of the POCSO Act. The accused abjured his guilt and argued that he was being falsely implicated at the instance of Bablu Chavan and Umesh Shetty who were local slumlords bent on grabbing his house.

Advocate Madhusudan Pareek appeared on behalf of the accused and argued that the Special Judge committed a grave error in placing implicit reliance on the testimony of the victim without there being necessary corroboration. Secondly, the testimony of the victim suffers from material omissions and improvements which rendered it unsafe to place reliance on the sole testimony of the victim. Thirdly, the fact that there was an inordinate and unexplained delay in lodging the FIR was lightly brushed aside by the learned Special Judge. Lastly, the non examination of witnesses, especially the neighbours of the victim, in the context of allegation of repeated sexual exploitation over a period of one year, dents the credibility of the prosecution, Adv Pareek submitted.

On the other hand, APP MH Mhatre submitted that the sole testimony of the prosecutrix is worthy of reliance and the Special Judge has not committed any error in returning the finding of guilt against the accused.

He contended that the medical evidence in the form of the testimony of Dr. Anjali Pimple (PW-3) provides requisite corroboration. Laying emphasis on the circumstances in which the victim was ravished by her father in the four walls of their house, he urged that the grounds of non-examination of independent witnesses and the alleged delay in lodging the FIR are of no significance.

The bench rejected the argument advanced by the appellant accused's counsel and observed-

"The victim (PW-2), after apprising the Court about the familial circumstances, testified to the fact that since one year prior to lodging of the report the accused had been sexually exploiting her. He used to disrobe her, tie her hands and do dirty things with her. When she resisted, the accused threatened her and also gave threats to kill her younger brother by pointing a knife to the latter's neck. She further affirmed that the accused used to give some pill to her before ravishing her."

Furthermore, the bench also rejected the submission that there is no credible evidence to indicate that the victim was subjected to sexual exploitation on November 4, 2014. Court described the victim's circumstances-

"In the case at hand, the victim has affirmed that she was threatened out of her life by the accused. She tried to reason with the accused but the latter continued to exploit her. The victim was a girl of tender age. Apart from the accused, there was nobody in her life to whom the victim could look up to. In the circumstances, the explanation offered by the victim cannot be said to be inconceivable or unsatisfactory."

As for the delay in lodging the report, Court clarified that delay in lodging the report by itself is not fatal to the prosecution. Nor delay in lodging the FIR can be used as a ritualistic formula to throw the prosecution overboard. If an explanation for delay is offered, the Court has to examine whether it is satisfactory or not. And if found satisfactory, the delay does not impair the prosecution, the bench noted.

Court also recorded its satisfaction with the way the trial judge made an effort to ensure truthfulness of the victim's claim. The bench observed-

"The situation which thus obtains is that the testimony of the victim in the backdrop of the attendant circumstances, allures confidence. It does not appeal to human credulity that the victim would depose against her father at the instance of third person, who was bent on grabbing her house, wherein she was residing with her father and brother. The tussle over occupancy rights of a room in a slum area, in a metropolis like Mumbai, is not uncommon. However, it does not stand to reason that the victim would stake her life and that of her father and side with a third person for the purpose of getting exclusive rights over the room wherein she has been residing. In addition, the medical evidence renders necessary assurance about the truthfulness of the testimony of the victim."

Finally, the bench refused to interfere with the quantum of sentence saying-

"The victim has deposed her helpless condition and the methods adopted by the accused to prevent her from raising alarms. To her misfortune, her prime protector preyed on her as a sexual predator. It was a case of fence eating into the crop.

The dictate of justice demands that the sexual predator is dealt with sternly and visited with condign punishment."

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